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ARVIND SINGH versus VI TH A.D.J.& ANOTHER

High Court of Judicature at Allahabad

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Arvind Singh v. Vi Th A.D.J.& Another - WRIT - C No. 9229 of 2000 [2005] RD-AH 5763 (16 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

CIVIL MISC. WRIT PETITION NO. 9229 OF 2000

Arvind Singh

versus

VI Additional District Judge, Ghazipur & another

HON. SHISHIR KUMAR, J.

The present writ petition has been filed against the order-dated 14.1.2000 passed by respondent no.1 whereby the amendment application filed by the petitoner has been rejected.

The facts arising out of the present writ petition is that one late Smt. Rukmani Devi was having a large number of agricultural properties. In order to protect the said property she created a Trust. This Trust was created after dedication of entire property to Lord Shiva and a temple of Lord Shiva was constructed from her own consideration. In order to give authenticity the petitioner was appointed as a trustee under the guardianship of his natural father Sri Ram Awtar Singh. Respondent no.2 who is a neighbour of late Smt. Rukmani Devi in order to grab the property deceived her by getting a sale-deed executed in his favour as well as got himself appointed as a trustee of the said Trust. On coming to know the aforesaid fact, Smt. Rukmani Devi filed suit No. 78 of 1974 requesting for alleged cancellation of sale-deed with a plea that she has never executed any sale-deed in favour of respondent no.2. The aforesaid matter came up to the High Court in Second Appeal No. 2273 of 1981 dated 21.2.1994. As Smt. Rukmani Devi died on 12.3.1983 during pendency of the appeal, a substitution application was filed on her behalf by the petitioner but the same was rejected on the ground that no adoption deed has been filed by the petitioner in the appeal. It appears that there was a notification under section 4 of the U.P. Consolidation of Holdings Act and the appeal was abated. It has been submitted that the petitioner has been adopted son of Smt. Rukmani Devi by a registered adoption deed, which has been executed. Smt. Rukmani Devi has also filed suit No. 99 of 1975 requesting therein that a correction be taken in place of trustee and in place of respondent no.2 the name of the petitioner be incorporated. The trial Court after hearing the parties at length and after considering the entire material available on record decreed the suit -vide its order dated 15.5.1979 and accordingly directed for correction of the registered trust-deed. Respondent no.2 knowing fully that he has got no right or title over the property, filed an appeal before respondent no.1. During the pendency of the aforesaid appeal before the respondent no.1 the petitoner filed an application for substitution which was duly allowed by the order dated 12.1.1984. The appeal was kept pending and in the mean time an application for amendment seeking amendment in the pleadings which was necessary for just disposal of the case and the controversy involved between the parties, the respondent without considering the legal implications involved in the case, rejected the said application.

A bare perusal of the order dated 14.1.2000 passed by respondent no.1 has virtually been impressed by the order dated 21.2.1994 passed by this Court which ought to have been abated on the commencement of consolidation proceedings in the village but the same has been dismissed as abated on the ground of substitution since the proper submission was not made on behalf of the petitioner. In view of the aforesaid fact it can safely be inferred that finding recorded by the respondent while rejecting the application is not correct. The amendment sought by the petitioner in his pleadings was just necessary in order to adjudicate upon the controversy involved between the parties. The court below has not properly considered the order-dated 12.1.1984 in the true spirits. It is needless to say that the registered adoption deed dated 17.8.1977 has never been challenged by respondent no.2 in any court of law, therefore, impliedly it will be inferred that respondent no.2 has admitted the contents mentioned therein and as such cannot be permitted at this stage to resile therefrom. As such, the order passed by respondents dated 14.1.2000 is illegal and arbitrary in nature.

It has further been argued on behalf of the petitioner that the amendment sought by the petitioner is neither changing the nature of the suit nor adversely affected in any manner to the respondent no.2. It has further been submitted that now it is well settled that amendment can be considered and allowed by the Court at any stage in order to avoid multiplicity of the litigation. The Apex Court as well this Court has held that the amendment sought by the parties ought to have been allowed instead of indulging in too technicalities. Reliance has been placed by the petitioner on the judgment reported in 2003 (1) A.W.C.18 (S.C.) Sampath Kumar Versus Ayyakannu and another .  In view of the principles laid down in the aforesaid judgment the petitioner submits that there is no straightjacket formula, which can be laid down. The fact remains that a mere delay cannot be the ground for refusing a prayer for amendment. In such a way, the petitioner submits that the order passed by respondent no.1 is liable to be set aside and the amendment application filed on behalf of the petitioner be allowed.

On the other hand the private respondent has submitted that the appeal was filed in the year 1979 and the same is still pending and due to the non-cooperation of the petitioner, the same is not being decided. Hon'ble Court vide its order dated 21.1.1994 passed in Second Appeal No. 2773 has rejected the substitution application of Arvind Kumar on the ground that the applicant has already been substituted as a legal representative of the deceased and after repeated demands the adoption deed executed in favour of the applicant, if any, has not been shown before  Court.

If Rukmani Devi has adopted Sri Arvind Kumar, petitioner, she could have herself moved an amendment after the said execution of adoption deed on 17.7.1977. She survived for a period of six years after the alleged execution deed but she never moved any application before the trial court to that effect. It has further been submitted that a similar application was moved by the petitioner in the year 1984 which was dismissed and the court has observed that "the respondent has already been substituted in this case as heir of the deceased Rukmani Devi and the papers sought to be filed has no relevance for the disposal of the appeal. The application to my opinion is not formed on good grounds. It is hereby rejected." The application for amendment was not maintainable, as substituted legal representative cannot move amendment application in the plaint for the facts, which have accrued after the suit has been filed. The question is that the petitioner has been substituted as a legal representative or has been substituted, as adopted son has no meaning. The amendment sought was highly belated and as such the courts below have rightly rejected the same. Reliance has been placed upon a judgment reported in 1999 (10) (Supreme) 229 B.K.N. Pillai Vs. P.Pillai and antoher   and it has been submitted on the basis of the aforesaid judgment that all the amendment of the pleadings should be allowed which are necessary for determination of real controversy in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. In such a way the respondent submitted that from the perusal of the application it is clear that the amendment which has been sought, that relates to the adjudicating the right of the petitioner on the basis of adoption deed dated 17.5.1977. As the petitioner has already been substituted in the proceedings, therefore, the amendment, which has been sought, that will be only for the purpose of changing the nature of the suit. The legal proposition is not denied to this effect that the amendment can be allowed at any stage unless and until it is established that the amendment sought was not in the knowledge of the person concerned when the suit was filed. Admittedly, the appeal is pending from 1979 and the petitioner has already been substituted. On the basis of the pleadings he can lead the evidence that he is an adopted son of Smt. Rukmani Devi on the basis of the registered adoption deed as alleged. As such, there was no occasion after a lapse of 21 years to move an application under Order 6 Rule17 C.P.C. for amendment. In such a way the respondent submits that the application is rightly rejected by the appellate court and the writ petition is devoid of merit and is liable to be dismissed.

I have considered the submissions made on behalf of the parties and have perused the record. The finding of fact recorded by the appellate authority that a similar application which was numbered as 142-Ga was filed by the petitioner alleging himself to be the adopted son and after hearing both the parties, the said application was rejected on 12.1.1984. The said order has become final and no appeal has been field and on the same grounds the present application has been field regarding the adoption deed dated 17.5.1977. A finding to this effect has also been recorded that the application, which has been filed for amendment has been filed only to delay the proceeding. The appeal is of 1979 and due to the various adjournments and making applications on behalf of the petitioner, the obstruction is being made only to delay the proceeding. Order 6 Rule 17 C.P.C. provides amendment of pleading. By amendment of 2002 a proviso has been added that amendments should generally be allowed at the stage of pretrial of the suit but subsequent thereto, the Court must be satisfied as to why the pleading could not be brought in unless it was based on subsequent developments. The issue involved herein is being considered by this Court every day. The amendment and pleadings may generally be allowed and the amendment may also be allowed at a belated stage. However, it shouldn't cause injustice or prejudice to the other side. The amendment sought should be necessary for the purpose of determination of real question. In controversy between the parties, the application for amendment may be rejected if the other party cannot be placed in the same position as if the pleadings had been originally correct but amendment would cause him injury which could not be compensated in terms of costs or change the nature of suit itself as it cannot be permitted to create an entirely new case by amendment. A right accrued in favour of the party by lapse of time cannot be permitted to be taken away by the amendment. Introduction  of entirely a new cause displacing even admission by a party is not permissible. Vide Pirgonda Hongonda Patil Vs. Kalgonda Shidogonda Patil &Ors. AIR 1957 SC 363; Nanduri Yogananda Laxminarsimhachari & Ors. Vs. Sri Agasthe Swarswamivaru, AIR 1960 SC 622; M/S Modi Spinning & Weaving Mills Co. Ltd. Vs. M/S Ladha Ram & Co. AIR 1977 SC 680; Ishwardas vs. State of M.P., AIR 1979 SC 551; and Mulk Raj Batra vs. District Judge, Dehradun, Air 1982 SC 24.

Similar view has been reiterated in G. Nagamma & Anr. Vs. Siromanamma & Anr. and (1996) 25; B.K. Narayana Pillai Vs. Parameshwaran Pillai & anr. , Air 2000 SC 614. However, a party cannot be permitted to move an application under Order 6 Rule 17 of the Code after the judgment has been reserved. (Vide Arjun Singh Vs. Mohindra Kumar & Ors. , AIR 1964 SC 993).

A Constitution Bench of the Hon'ble Supreme Court in Municipal Corporation of Greater Bombay vs. Lala Pancham & Ors. AIR 1965 SC 1008, observed that even the court itself can suggest the amendment to the parties for the reason that main purpose of the court is to do justice, and therefore, it may invite the attention of the parties to the defects in the pleadings, so that same can be remedied and the real issue between the parties may be tried. However, it should not give rise to entirely a new case.

In Jagdish Singh Vs. Natthu Sing AIR1992 SC 1604, theHon'ble Supreme Court held that the court may allow to certain extent even the conversion of the nature of the suit, provided it does not give rise to entirely a new cause or action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief but amendment seeking for damages for breach of contract may be permitted.

In Gurdial Singh Vs. R. Kumar Aneja (2002) 2 SCC 445, the Hon'ble Supreme Court deprecated the practice adopted by the courts entertaining the application under O. 6 R.17 of the Code containing very vague and general statements of facts without having necessary details in amendment application enabling the court to discern whether the amendment involves withdrawal of an admission made earlier or attempts to introduce a time-barred plea or claim or is intended to prevent the opposite party from getting the benefit of a right accrued by lapse of time, as amendment cannot be permitted to achieve the said purposes.

Similarly, in Om Prakash Gupta Vs. Ranbir B. Goyal, AIR 2002 SC 665, the Hon'ble Supreme Court reiterated the same view extending the scope of O.6 R.17 of the Code, observing that amendment should not disturb the relevant rights of the parties those existed on the date of institution of a suit but subsequent events may be permitted to be taken on record in exceptional circumstances if necessary to decide the controversy in issue. The Court held as under:-

"Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under O. 6 R. 17 C.P.C., Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. Vs. R.M. N.N. Nagappa Chettiar, AIR 1953 SC 235, this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be founded; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao Vs. Sita Ram Kesho, (1988) 25 IA 195 (PC), their lordships observed that, as a rule, relief not founded on the pleadings should not be granted."

In view of the aforesaid fact as the amendment sought by the petitioner was highly belated and this fact was known to the petitioner immediately after the death of Smt. Rukmani Devi and similar application has already been rejected as such, there is no illegality in the order dated 14.1.2000. The writ petition is devoid of merit and is hereby dismissed. No order as  to costs.

Nov.  16 ,2005

V.Sri/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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